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Warning against overly long bundles and skeleton arguments

Caldero Trading Ltd v Leibson Corporation Ltd & Ors [2014] EWCA Civ 935 was a commercial law appeal. It was listed for three days. The Court was presented with no less than 17 lever arch files of documents and authorities. The appellant’s skeleton argument (including a schedule and four appendices) was 72 pages long; the respondent’s (including also four appendices) ran to 67 pages.



In the event the argument lasted for only about four hours. Lord Justice Rimer commented upon the bundles and skeletons thus: “… Only one authority was actually cited to us and I doubt if we were referred to more than about 24 of the thousands of pages that were copied. I regarded the skeleton arguments on both sides as too long…”



He pointed out that skeleton arguments should not “normally” exceed 25 pages (paragraph 31 of PD 52C). Indeed in the course of a fairly stinging rebuke, he opined that “It is a travesty to call such written submissions ‘skeleton’ arguments… The authorities bundles were also produced without any proper thought as to what actually might be needed in an appeal on fact, not a point of law. The so-called ‘skeletons’ of both sides were disgracefully long and showed a disdainful regard for CPR PD 52C paragraph 31”.



Lord Justice Aikens endorsed this: “There are far too many appeals where the parties simply copy all the trial bundles without thinking out what is actually needed for the appeal hearing … This is not only costly and wasteful but it demonstrates that the parties have not actually thought about the issues on the appeal and how to deal with them.” He also agreed that the skeleton arguments had been far too long and rued the lack of an attempt to create a “core bundle”.



He warned that “a wholesale failure to comply with the practice direction on written submissions and, I would add, failure to use common sense in working out more precisely what bundles are needed for the appeal, may well lead to strict adverse costs orders”.



Aikens LJ continued to warn parties that such failures “may well lead to strict adverse costs orders”, and that this was “something we shall have to consider carefully in this case”. Perhaps somewhat mischievously, the learned judge referred to a previous judgment of his, in which he noted “somewhat ruefully” that the punishment for prolix pleadings imposed on the miscreant in the 1596 case of Mylward v Weldon may no longer be available today – they were hung around his shoulders and he was led around the courts in shame – surely not a pleasant prospect in the case of particuarly 17 lever arch files!




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